y  ,       ; 

REPORT 


OF   THE 


CHIEF  OF  THE  DEPARTMENT 


OF 


JUSTICE  AND  POLICE, 


TO  THE 


GOVERNOR  AND  EXECUTIVE  COUNCIL. 


PART    I. 

ON  THE  POWERS  OF  THE  CONVENTION. 


COLUMBIA,    S.    0.2 
CHARLES  P.  PELHAM,  STATE  PRINTER. 

1862. 


REPORT 


OF    THE 


CHIEF  OF  THE  DEPARTMENT 


OF    ' 


JUSTICE  AND  POLICE, 


TO  THE 


GOVEENOB  AND  EXECUTIVE  COUNCIL. 


PART    I. 

ON  THE  POWERS  OF  THE  CONVENTION. 


COLUMBIA,    S.    0. : 
CHARLES  P.  PELHAM,  STATE  PRINTER. 

1862. 


e-^^TX^ 


REPORT 


To  His  Excellency,  Governor  Pickens, 

Presiding  over  the  Executive  Council  of  South  Carolina  : 

Sir  :  In  compliance  with  your  requirement,  that  I  should  report  to  the 
Governor  and  Council  the  proceedings  of  the  Department  of  Justice  and 
Police,  I  respectfully  report,  that,  though  the  acts  of  my  Department  proper, 
as  well  as  the  matters  which  have  from  time  to  time  been  assigned  to  me, 
have,  in  almost  every  instance,  been  the  subject  of  previous  consultation  in 
the  Council,  and  therefore  I  have  but  little  of  information  to  communicate, 
I  acknowledge  the  propriety  of  the  call.  It  is  right  that  these  proceedings 
should  be  formally  spread  upon  the  record. 

The  "Rules"  established  for  my  Department,  adopted  on  the  seventeenth 
January,  prescribed  it  as  my  first  duty  "to  construe  the  Ordinances  of  the 
several  sessions  of  the  Convention,  and  all  Acts  of  the  General  Assembly,  in 
relation  to  the  duties  and  powers  of  the  Executive  Authority  of  the  State." 
This,  of  course,  makes  me  peculiarly  responsible  for  the  competency  of  "the 
Governor  and  Council,  acting  together,"  under  the  Ordinance  of  the 
Convention,  to  perform  such  acts  as  have  beeen  undertaken ;  for  I  have  in 
no  case  entered  a  formal  protest  against  any  proceeding. 

It  is  proper,  then,  that  I  should  preface  my  report  with  some  exposition 
of  the  principles  on  which  I  have  construed  the  powers  conferred  upon  the 
Executive  Authority,  to  be  exercised  by  the  Governor  and  Executive 
Council,  "acting  conjointly." 

First,  then,  as  to 

THE    POWERS  OF  THE  CONVENTION. 

Did  this  CONVENTION  have  power,  for  certain  purposes,  and  during 
certain  exigencies,  to  create  a  new  form  of  Executive  Authority  for  the 
State,  and  to  confer  on  such  Authority  new  powers,  not  hitherto  vested  in 
that  Department  ?     I  answer  to  this,  unquestionably,  yes. 

In  the  States  Rights  School  of  1832  and  '34  it  was  (with  but  one  promi- 
nent exception)  the  received  opinion  that  a  Convention,  called  in  South 
Carolina,  under  the  provisions  of  the  Constitution,  was,  for  every  political 


4£5£69 


and  legal  purpose,  the  People.  It  was  considered  as  a  means,  provided  by 
the  Constitution  itself,  for  invoking  the  action  of  the  ultimate  Sovereignty 
of  the  State.  This  Sovereignty,  admitted  to  be  in  the  People  in  their 
"aggregate  and  politic  capacity  "  can  only  be  exercised,  practically,  through 
a  convention,  and  a  convention  became  thus  to  be,  theoretically,  considered 
as  the  People  themselves.  Hence  the  form  of  ordaining  their  decrees 
adopted  by  the  Conventions  of  1832,  of  1852,  and  1860,  to  wit:  "WE,  the 
PEOPLE  of  South  Carolina,  in  Convention  assembled,  do  ordain  and 
declare^ 

I  am  aware  that  in  1834,  in  the  celebrated  legal  argument  on  the  Oath 
of  Allegiance,  although  the  advocates  of  the  States .  Rights  School  all 
maintained  this  doctrine,  yet  Judge  Harper  gave  the  weight  of  his  high 
authority  to  a  view  somewhat  different.  He  maintained  that  a  Convention, 
though  sovereign,  absolute  and  illimitable,  for  every  purpose  within  the 
range  of  objects  for  which  they  were  assembled,  was,  beyond  these  purposes, 
neither  the  people,  nor  did  it  represent  the  people.  A  great  majority  of 
States  Rights  men  held,  however,  the  opinion  expressed  in  one  of  the 
reports  of  the  day,  which  I  myself  had  the  honor  to  submit,  an  extract  from 
which  I  will  now  insert,  (at  an  interval  of  twenty-eight  years,)  as  containing 
my  present  opinion. 

"When  this  profound  jurist  (Judge  Harper)  says  that  a  convention  is 
limited  by  the  purposes  for  which  it  was  called,  we  admit  that,  morally,  it  is 
so  limited,  and  that  a  delegate  who  but  proposes  a  measure  for  a  purpose 
not  contemplated  by  the  people  when  he  was  elected,  is  guilty  of  moral 
treason.  But  when  Judge  Harper  assumes  that  the  Judiciary,  or  any  other 
constituted  authority,  has  a  right  to  inquire  whether  a  measure  adopted  in 
Convention  was  or  was  not  adopted  in  conformity  with  the  intentions  of  the 
people,  he  ascribes  to  the  Judiciary  a  right  which  we  cannot  admit  that  they 
possess.  Is  it  not  obvious  that  this  gives  the  judges  a  practical  control 
over  a  convention  of  the  people  ?  As  in  the  case  before  us"  (the  Oath  of 
Allegiance)  "two  judges  decide  that  the  people  did  not  intend  what  the 
Convention  believed,  the  Legislature  believed,  and  what  a  great  majority 
of  the  people  themselves  still  believe,  they  did  intend — and  the  will  of 
the  people  is  set  at  naught,  and  an  Act  of  the  Convention  effectually 
nullified." 

Judge  Harper  happily  defines  Sovereignty  to  be  "that  power  which, 
"  controlling  all  other  constituted  authorities,  is  itself  not  subject  to  the 
"  control  of  any."  He  considers  Sovereignty  "  as  abiding  in  the  people  of 
"South  Carolina." 

He  says,  again,  that  this  "  is  not  that  imaginary  sovereignty  of  the  people 
"which  has  been  supposed  to  exist  even  in  a  despotic  monarchy." 


5 

M  '  The  Constitution/  continues  he,  'has  provided  in  what  manner  the 
"  people  shall  be  appealed  to,  viz  :  in  a  Convention  called  by  two-thirds  of 
"  both  branches  of  the  Legislature/  Again,  they  (the  people  in  convention) 
"  '  may  abrogate  any  Act  of  the  Government,  and  all  constituted  authorities 
"are  bound  to  respect  and  obey  their  determination/  'They'  (the  people  in 
Convention)  'are  responsible  to  opinion,  they  are  bound  by  good  faith,  they 
"  may  be  resisted  by  force,  or  subdued  by  superior  power,  but  their  acts  are 
"not  subject  to  the  legal  control  of  any  constituted  authority/"  This  we 
conceive  to  be  sound  Republican  doctrine.  But  how  the  learned  judge 
can  reconcile  with  this  the  right  which  he  ascribes  to  the  Judiciary,,  to 
decide  whether  a  power  exercised  by  this  Convention  has  or  has  not  been 
delegated  by  the  people,  we  cannot  perceive.  We  defy  any  one  to  point  out 
a  tittle  of  distinction,  practical  or  in  principle,  between  the  control  which 
Judge  Harper  would  thus  give  to  the  Judiciary  over  a  Convention,  and  that 
which  it  is  admitted  they  have  over  the  ordinary  Legislature.  They  have 
no  right,  in  regard  to  the  Legislature,  to  do  more  than  decide  whether  or 
not  that  body  keeps  within  the  pale  of  its  authority — whether  a  power 
exercised  by  them  has  or  has  not  been  delegated  to  them  by  the  people — 
and  it  is  this,  precisely,  which  Judge  Harper  claims  for  them  in  regard  to  a 
Convention.  The  people  appear  in  their  sovereign  capacity, only  as  assembled 
in  Convention — when  so  assembled,  they  are  sovereign  for  EVERY  PURPOSE, 
or,  practically,  they  can  be  so  for  none.  Grant  to  the  Judiciary  the  right 
to  question  their  acts,  and  you  give  them  the  power  to  limit  and  control. 
In  construction,  of  law,  a  Convention  is  the  People,  and  its  every  act, 
as  far  as  the  judges  have  any  concern  with  it,  the  Act  of  the  People.7' 

"To  subject  the  acknowledged  will  of  a  convention  to  the  control  of  any 
other  authority,  is  to  deprive  the  people  altogether  of  the  means  of  express- 
ing a  Sovereign  purpose,  that  is,  a  purpose  which  cannot,  by  any  form  of 
law,  be  disputed." 

The  report  proceeds  further,  as  follows  : 

"  Sovereignty  can  correctly  be  predicated  only  of  that  power  in  the  State 
which,  possessing  an  ultimate  control  over  all  other- constituted  authorities, 
is  itself  subject  to  the  control  of  none. 

"Allegiance  is  due  only  to  the  Sovereign  power,  and  is  that  paramount 
political  obligation  which  binds  the  individual  in  a  State  to  acknowledge 
and  preserve  unimpaired  its  Sovereignty. 

"It  is  clearly  distinguishable  from  the  duty  of  obedience  to  delegated 
authority.  It  is,  indeed,  the  source  from  which  emanates  the  obligation  of 
obedience  to  any  other  constituted  authority  than  the  Sovereign. 

"Sovereignty  delegates  a  portion  of  its  power;  Allegiance  renders  obedi- 
ence to  that  power  a  duty. 


425269 


6 

"Sovereignty,  from  its  definition,  is  necessarily  single  and  indivisible,  and 
Allegiance  must  be  equally  so. 

"In  South  Carolina,  entire,  unimpaired  Sovereignty  bides  in  the  people 
of  the  State,  and  a  citizen  of  South  Carolina  owes  entire  and  unimpaired 
Allegiance  to  the  people  of  South  Carolina,  so  long  as  he  continues  a 
citizen  thereof.  They,  and  they  alone,  have  imposed  upon  him  the  duty  of 
obedience  to  the  Constitution  of  the  United  States.  They  can  release  him 
from  the  duty.  They  can  transfer  the  duty.  It  exists  by  their  fiat,  and 
they  alone  are  its  fit  interpreters/' 

"Thus  far,"  says  the  report,  "we  speak  the  recorded  opinions  of  South 
Carolina  herself.  Is  the  principle  less  fixed  that  a  Convention  of  the  People 
is  not  subject  to  the  legal  control  of  any  constituted  authority  ?" 
.  Such,  it  was  understood,  were,  in  that  day,  the  doctrines  of  Calhoun  and 
McDuffie,  of  Hayne,  Turnbull  and  Hamilton,  of  Colcock,  Earle,  Butler, 
Elmore,  Player?;  of  all,  indeed,  of  the  States  Rights  School.  I  mention  the 
dead  only,  the  living  may  speak  for  themselves.  Indeed,  State  Rights, 
State  Remedies,  State  Sovereignty,  Allegiance  to  the  State,  would  all  be 
unmeaning  phrases  but  for  the  acknowledged  supremacy  of  a  Convention  of 
the  People.     It  is  the  cornerstone  of  the  edifice. 

But  whether  the  view  contained  in  the  "Report"  or  that  of  Judge 
Harper  be  true,  is  immaterial  in  the  present  inquiry.  A  convention, 
according  to  both  theories,  is  SOVEREIGN,  and,  therefore  above  all 
constituted  authorities,  when  acting  within  the  sphere  indicated 
by  the  Legislature  in  the  Act  which  assembles  them. 
I  What,  then,  were  the  purposes  for  which  the  Convention  was  called 
together  by  the  Legislature,  to  assemble  on  the  seventeenth  day  of  Decem- 
ber, 1860  ?  And  does  the  creation  of  the  Executive  Council  come 
within  the  scope  of  those  purposes  ? 

First,  what  were  the.  circumstances  of  the  call?  The  telegraph  had 
announced  the  election  of  Lincoln,  and  the  Legislature  determined  at  once 
to  invoke  the  highest  power  known  to  our  institutions — a  Convention  of 
the  People  of  the  State.  Not  as  a  subordinate  ministerial  agent,  to  enroll 
the  decrees  of  the  Legislature,  but  "for  the  purpose  of  taking  into  conside- 
ration the  dangers  incident  to  the  position  of  the  State  in  the  Federal  U?iion 
established  by  the  Constitution  of  the  United  States,  and  the  measures  which 
may  be  necessary  and  proper  for  providing  against  the  same,  and  thereupon 
to  take  care  that  the  Commonwealth  of  South  Carolina  shall  suffer  no 
detriment."  A  disruption  of  the  ties  which  had  hitherto  bound  us  to  our 
sister  States  was  one  thing  contemplated.  But  the  ultimate  decision  was 
left  to  the  Convention,  as  the  Sovereign  Authority.  It  was,  then,  within 
the  purposes  of  this  Convention  to  abrogate  the  Constitution  of  the  United 


States.  South  Carolina,  for  a  time,  at  least,  might  stand  alone,  and  it  must 
have  been  within  the  purposes  of  the  Convention  to  modify  the  State  Con- 
stitution. A  new  alliance  was  contemplated  with  other  States,  and  it  was 
within  the  purposes  of  the  Convention  to  ratify  a  Provisional  and  Perma- 
nent Constitution  of  the  new  Confederacy. 

These  high  powers  have  not  been  questioned,  yet  they  are  but  inferences 
from  the  general  powers.  A  AYAH  was  certainly  within  the  contemplation 
of  some.  Although  secession  was  claimed  as  a  right,  not  conflicting  with 
any  obligation  under  the  Constitution  of  the  United  States,  and,  therefore, 
not  revolutionary,  it  was  apprehended  that  our  claim  to  self-government 
might,  like,  that  of  our  forefathers  of  1776,  have  to  be  vindicated  by  the 
sword,  and  that,  practically,  provision  must  be  made  for  the  conduct  of  a 
Revolution  of  blood.  The  Legislature  declare,  accordingly,  that  the 
Convention  shall  consider  our  u  DANGERS" — all  the  "dangers"  growing 
out  of.  our  position,  including,  I  presume,  the  dangers  of  the  WAR,,  which 
might  be  the  consequence  of  secession,  and  M  the  measures  necessary  and 
proper  for  providing  against  the  same."  Have  the  apprehended  "  dangers'' 
ceased?  Are  there  no  further  " measure?  necessary  and  proper  for  pro- 
viding against  the  same"?  The  Ordinance  of  the  Convention  for  "strength- 
ening the  Executive  Department  during  the  exigencies  of  the  present 
War,"  was  manifestly  intended  as  &  "measure"  for  this  very  purpose. 
But,  as  if  to  make  assurance  doubly  sure,  the  Legislature  declare,  further, 
that  the  Convention  shall  "thereupon  take  cave  that  the  Commonwealth 
of  South  Carolina  shall  suffer  no  detriment." 

Now,  conceding  that  the  terms  of  the  call  of  the  Convention  constitute, 
the  only  " limitation"  on  the  powers  of  a  Convention,  as  held  by  Judge 
Harper,  can  human  language  be  contrived  suggesting  broader  and  more 
absolute  powers  than  the  above  ?  And,  "  thereupon  to  take  care  that  the 
Commonwealth  of  South  Carolina  shall  suffer  no  detriment"  Is  this  the 
language  of  a  LIMITATION  of  power  ?  It  is  applied  to  a  body  repre- 
senting the  Sovereignty  of  the  State — a  body  in  all  respects  similar  to 
that  which  gave  being  to  our  State  Constitution — a  body  by  whose  fiat  our 
Legislature,  our  Governor,  and  our  Judiciary,  have  their  existence.  Is  it 
not  in  effect  a  declaration,  in  terms,  that  the  Convention  to  be  called  should 
have  NO  limitation  on  its  powers  ? 

It  has  been  said  that  the  "dangers"  apprehended  were  in  the  Union,  and 
the  "measures"  were  only  such  as  should  provide  against  these.  This  is 
special  pleading.  The  "  dangers"  were  such  as  were  incident  to  the  "  po- 
sition of  the  State,"  then,  of  course,  "  in  the  Union,"  but  which  the  Con- 
vention was  specially  intended  to  take  out  of  the  Union,  and  the  "measures" 
were  meant  to  provide  against  the  "dangers"  which  might  grow  out  of  that 
position.     Surely,  the  dangers  which  ensued  have  not  yet  ceased. 


It  is  contended  that  secession  was  the  measure  adopted,  and  that  this 
relieved  us  from  all  dangers  "  in  the  Union/' 

But  the  Convention  is  enjoined  "  thereupon  "  (that  is,  after  secession,) 
"  to  take  care  that  the  Commonwealth  of  South  Carolina  shall  suffer  no 
detriment."  Detriment  from  what?  I  answer,  the  "measures"  taken; 
which  were,  Secession  and  the  formation  of  the  Southern  Confederacy. 
"  Thereupon"  war  was  made,  and  war  still  continues.  Does  war  work  no 
"  detriment  ?"  If  it  does,  then  it  is  the  duty  of  the  Convention  to  shield, 
as  far  as  may  be,  the  Commonwealth  of  South  Carolina  from  such  det- 
riment. 

The  question  as  to  the  extent  of  the  powers  of  the  Convention  of  1832 
had  been  the  subject  of  controversy.  Dr.  Cooper,  in  his  compilation  of  the 
Statutes,  had  pronounced  it  still  "  an  open  question,"  as  to  that  Convention; 
and  the  Legislature,  as  if  to  provide  against  any  possibility  of  cavil  on  this 
occasion,  so  solemn  and  momentous,  chose,  in  declaring  the  purposes  of  the 
present  Convention,  to  translate  the  Latin  phrase  by  which  the  Senate  of 
Rome  had  for  centuries  conveyed  DICTATORIAL  POWER  on  her 
Consuls.  "Darent  oper'am  consules,  ne  quid  respublica  detri- 
MENTI  caperet,"  was  the  language  of  the  famous  decree  which  conferred 
on  Cicero  and  his  compeer,  for  the  suppression  of  Cataline's  conspiracy,  the 
power  known  as  "  Ultimum"  or  "Extremun."  A  power  which,  Sallust  tells 
us,  "often"  "it  had  been  the  custom"  to  confer,  "in  atroci  negotio," 
u  in  a  dangerous  emergency  "  as  the  translator  has  it.  The  translator  says, 
"by  it"  (this  decree)  "the  Republic  was  said  to  be  entrusted  to  the 
Consuls." 

The  phrase,  originally  selected  for  its  aptness  in  conveying  absolute  and 
illimitable  power,  had  become  fixed  in  its  interpretation,  by  its  long  use  by 
the  greatest  nation  of  antiquity ;  and  in  this  language,  with  its  construction 
thus  established  throughout  the  civilized  world,  the  Legislature  thought 
proper  to  express  the  extent  of  the  purposes  to  which  the  Convention  were 
invited  to  address  themselves. 

Unless  the  Legislature  said  one  thing,  while  they  meant  another,  they 
committed  to  this  august  body,  during  the  exigencies  of  the  time,  the  for- 
tunes of  the  Republic;  with  power  to  act  directly  or  through  agencies — with 
the  power  to  make  and  unmake  Constitutions,  provisional  or  permanent ; 
and  to  create  governments,  general  or  partial — temporary,  or  until  a  new 
Convention  shall  order  otherwise.  In  addition  to  the  force  of  the  language 
used,  the  faot  that  the  Act,  as  first  introduced,  should  have  fixed  two  years 
as  the  period  of  duration  for  the  Convention,  indicates  that  something 
more  than  the  Act  of  Secession  and  the  adoption  of  Constitutions  was 
intended.     No  one   proposed  a  shorter  duration  than  tico  years;  and  this 


9 

time,  it  was  thought,  might  not  give  all  the  latitude  which  was  requisite,  and 
it  was  stricken  out. 

Surely,  "  two  years"  was  a  longer  period  than  would  have  been  suggested 
if  the  only  business  contemplated  had  been  the  Act  of  Secession  and  the 
adoption  of  a  new  Constitution.  In  my  judgment,  the  duration  was  in- 
tended to  be  commensurate  with  the  necessities  of  the  occasion  which  called 
them  together,  whatever  that  period  might  be.  Our  independence  achieved 
and  acknowledged^  and  peace  restored,  the  Convention  will  then,  but  not 
until  then,  be  functus  officio.  To  protract  its  existence  beyond  this  period, 
would  be  that  breach  of  "good  faith"  which  would  justify  that  resort  to 
"force,"  which  is  the  only  remedy  for  usurpation  in  the  Sovereign.  On 
the  other  hand,  the  Convention,  in  my  opinion,  would  be  derelict  to  their 
duty  if  they  abandon  the  helm  until  the  ship  is  safely  in  port. 

Such  was  the  call  under  which  the  voters  of  the  State  elected  the  mem- 
bers of  the  Convention. 

However  the  fact  may  since  have  passed  from  the  memories  of  some,  the 
people,  at  that  time,  realized  that  the  body  about  to  be  assembled  would 
be  charged  with  duties  more  grave,  critical,  and  responsible  than  any  which 
had  ever  hitherto  devolved  upon  any  constituted  authority  in  this  State. 
The  circumstances  under  which  the  Convention  was  assembled — the  terms 
of  the  Act  under  which  the  call  was  made — the  received  opinions  of  the 
majority  of  the  people  of  the  State  as  to  the  extent  of  ^he  powers  inherent 
in  such  a  body,  were  sufficient  to  apprize  the  most  dull  that  suffrage  was 
being  exercised  on  the  most  important  occasion  of  their  lives. 

Accordingly,  the  people  called  forth  their  wisest  and  best  men.  There 
was  no  constitutional  disqualification  for  a  seat  in  the  Convention — no 
abridgment  of  the  people's  unbiassed  choice.  Judges,  Chancellors,  public 
officers  of  all  kinds,  clergymen,  all  were  eligible.  The  result  was  that  the 
Convention,  in  the  aggregate,  has  never  been  surpassed,  in  this  or  any  other 
country,  for  intelligence,  patriotism,  and  moral  worth. 

Most  of  the  members  were  either  men  drawn  from  voluntary  retirement, 
or  those  whose  career  and  position  in  life  were  so  far  determined  that  the 
ordinary  temptations  of  ambition  were  absent.  A  less  self-seeking  and 
more  earnest  body  of  citizens  never  assembled. 

Such  was  the  Convention,  in  theory  and  in  fact,  which  passed  the  Ordi- 
nance under  consideration. 

There  are  two  other  errors  in  regard  to  limitations  on  Conventions,  which 
need  notice,  though  they  would  seem  to  destroy  each  other.  It  is  con- 
tended by  some  that  a  Convention  can  neither  legislate  or  perform  any 
administrative  act ;  and  to  sustain  this  view  it  is  claimed  that  it  has  been 
the  practice  of  Conventions  to  abstain  from  both.  This  is  one  position. 
2 


10 

Those  who  take  this  position  deny  that  the  Convention  can  appropriate 
money  or  draw  from  the  Treasury.  This  is  all  gratuitous  assumption  in 
point  of  principle,  and  erroneous  in  point  of  fact.  Was  it  an  act  of  usurpa- 
tion, when  the  Convention,  at  its  first  session,  ordered  three  regiments  to  be 
raised — two  of  regulars,  by  enlistment,  and  one  of  volunteers,  commanded 
by  Col.  G-regg  ?  Still  more  palpable,  then,  was  the  usurpation  when  they 
appropriated  three  hundred  thousand  dollars  for  building  a  gun-boat.  The 
usurpation  of  the  Convention  began,  according  to  this  theory,  as  soon  as  the 
Act  of  Secession  was  ratified,  has  continued  ever  since,  and  has  not  been 
confined  to  those  who  favored  the  creation  of  the  Executive  Council.  It  is, 
in  general,  on  grounds  of  expediency,  wise  that  Conventions  should  abstain 
from  all  ordinary  legislation,  or  exercise  of  ordinary  executive  power,  where 
the  Legislature  and  Governor  can  be  at  once  called  into  action.  But  so  far 
Js  it  from  being  true  that  Conventions  have  on  principle  withheld  from  all 
action  of  this  kind,  that  I  venture  the  assertion  that  the  Conventions 
throughout  the  now  Confederate  States  all  more  or  less  took,  for  a  time,  a 
share  of  the  management  of  affairs  into  their  own  hands. 

Certainly,  the  Convention  of  Alabama,  the  proceedings  of  which  I  have 
before  me,  passed,  immediately  after  an  Ordinance  of  Secession,  one  "  for 
the  Military  Defence  of  the  State,"  another  to  "  reorganize  the  Militia," 
with  very  many  others  of  like  character.  The  power  which  can  create 
Governors  and  Legislatures  may,  in  emergencies,  perform  the  functions  of 
either. 

The  other  most  extraordinary  position,  in  direct  conflict  with  the  last,  is 
the  application  of  the  law  maxim  to  a  Convention — non  potest  delegatus  del- 
egare— that  is,  that  a  Convention,  exercising  itself  delegated  authority,  can- 
not delegate  to  others.  The  first  position  assumes  that  all  government  must 
be  exercised  through  delegated  authority,  and  the  second,  that  it  can  only  be 
exercised  directly,  and  cannot  be  lawfully  exercised  by  delegated  authority. 

The  ordinary  and  most  appropriate  sphere  in  which  a  Convention  usually 
acts,  except  in  "atroci  negotio" — dangerous  emergencies — is  in  the  creation 
of  governments,  limited  by  constitutions  prescribed  by  the  Convention — 
that  is,  in  delegating  portions  of  their  own  powers;  but  a  Convention  may, 
in  its  discretion,  proceed  to  exercise  itself  any  power  which  it  has  authority 
to  delegate.  , 

*Again  :  the  assumption  that  to  give  validity  to  any  action  of  a  Convention 
intended  to  alter  or  suspend  any  part  of  the  Constitution  of  the  State,  the 
ordinance  must  EXPRESS  that  a  repeal,  alteration,  or  amendment  is  intended, 
is  gratuitous,  and  without  reason.  Where,  I  would  ask,  is  any  such  prin- 
ciple laid  down  ? 

Like  the  Legislature,  the  Convention  may  repeal  or  alter,  by  impli- 
cation.    The  last  act  of  either  body  is  that  to  be  looked  to  as  the  exposition 


11 

of  its  will,  and  as  constituting  the  law,  and  everything  conflicting  is  neces- 
sarily repealed,  suspended,  or  modified  into  accordance  with  the  will  last 
expressed.  In  point  of  fact,  it  was  well  understood  by  the  Convention  that 
this  Ordinance  was  a  suspension,  for  the  time  being,  of  some  of  the  provisions 
of  the  Constitution,  and  it  was  so  intended.  I  am  not  aware  that,  within 
the  Convention,  there  was  any  one  who  questioned  the  power  of  that  body 
to  pass  the  Ordinance. 

I  hold,  then,  that  the  Convention  had  the  right,  during  the  exigencies 
of  the  war,  to  add  to  the  powers  of  the  Executive  by  giving  control  of  some 
matters  which-,  under  the  Constitution,  are  committed  to  the  Legislature, 
and  to  make  the  Executive,  for  some  purposes,  consist  of  five  persons 
instead  of  one.  In  other  words,  I  hold  that  the  Ordinance  creating  the 
Council  emanates  from  an  authority  as  high  and  competent  as  that  creating 
the  Constitution,  and  that  being  the  LATEST  expression  of  the  will  of 
this  Sovereign  Body,  it  is,  during  its  existence,  paramount  to  the  Constitution, 

If  this  be  so,  we  are  to  look  to  the  Ordinance  alone  as  the  charter  of  our 
rights  and  powers. 

The  views  upon  the  construction  of  the  Ordinance  I  will  submit 
to-morrow,  as  part  second  of  my  report. 

^  Respectfully,  your  ob't  servant, 

I.  W.  HAYNE. 


k 


REPORT 


OF    THE 


uT 


O  u  \  |r> 


CHIEF  OF  THE  DEPAET1CENT 


OP 


JUSTICE  AND  POLICE, 


TO  THE 


GOYERNOB  AND  EXECUTIVE  COUNCIL. 


PART   II 


OK  THE  POWERS  OF  THE  GOVERNOR  AND 
EXECUTIVE  COUNCIL. 


COLUMBIA,   S.   C: 
CHARLES  P.  PELHAM,  STATE  PRINTER. 

1862. 


T 


r*-^r~ 


REPORT 


PART    II. 


To  His  Excellency,  Governor  Pickens, 

Presiding  over  the  Executive  Council  of  South  Carolina  : 
I  propose  now  to  proceed  to  consider 

THE    POWERS    OF    THE    GOVERNOR  AND    EXECUTIVE    COUNCIL,  ACTING 
TOGETHER,    UNDER    THE    ORDINANCE    OF    THE    CONVENTION. 

First,  take  the  title:  It  is  an  Ordinance  "for  strengthening  the  Executive 
Department  during  the  exigencies  of  the  present  war." 

The  powers  of  the  Executive  are  increased,  which  could  hardly  be 
without  taking  from  some  other  Department,  and  these  new  powers  have 
reference  to  the  exigencies  of  the  war. 

The  powers  conferred  on  the  Governor  and  Executive  Council,  u  acting 
together,"  are,  first,  to  declare  martial  law,  when,  and  where,  and  with 
such  limitation,  as  the  Governor  and  Council  might  think  the  exigency  of 
public  affairs  required.  This  power,  like  Aaron's  rod,  might  have  been 
made  to  swallow  all  the  rest.  Martial  law  is  despotism.  It  substitutes  the 
will  of  the  ruler  for  all  other  law,  to  the  extent  that  martial  law  is  declared. 
Martial  law  declared  over  the  whole  State,  and  its  extent  (that  is,  the 
subjects  over  which  it  should  take  control)  defined,  every  power  afterwards 
specified  in  the  Ordinance  might  have  been  exercised.  This  great  first 
power  having  been  clearly  conferred,  has  been  to  me  a  guide  in  determining 
the  general  intention  of  the  Convention,  and  thereby  construing  all  that 
follows.  There  is  a  power  to  arrest  and  detain  disloyal  and  disaffected 
persons,  whose  being  at  large  is  deemed  dangerous  to  the  public  safety; 
and  to  order  and  enforce  such  disposition  and  appropriation  of  private 
property  for  public  uses  as  the  public  good  requires.  There  is  the  power 
to  make  and  cause  to  be  executed  all  orders,  regulations  and  arrangements, 
as  they  shall  from  time  to  time  find  expedient,  in  regard  to  the  military, 
and  for  maintaining  such  efficient  police  as  shall  by  them  be  thought 
necessary.     The  power  to  appoint  agents,  to  draw  money  from  the  treasury, 


to  make  nominations  and  appointments  to  military  office,  such  as  the 
Governor  had  hitherto  done  j  to  fill  accidental  vacancies  in  civil  appoint- 
ments untif  the  Legislature  meets — these  powers,  except  filling  accidental 
vacancies  in  office,  all  relate  to  the  "  exigencies  of  the  present  war  ;"  and 
except  the  appointments  to  military  offices,  are  new  powers,  not '  before 
possessed  by  the  Executive ;  and,  in  express  terms,  are  to  END  with  the 
close  of  the  war,  and  disbandment  of  our  troops.  (See  Appendix,  A.) 
During  the  war,  and  for  purposes  connected  with  its  prosecution,  they  are 
very  large. 

Among  the  first  measures  in  assertion  of  the  extraordinary  powers 
conferred,  was  the  proposition  contemplating  the  seizure  of  silver  plate  for 
the  use  of  the  State,  introduced  by  your  Excellency.  The  power,  it 
appeared  to  me,  to  act  on  this  subject  was  clearly  delegated  under  the 
right  "  to  order  and  enforce  (subject  to  the  owner's  right  to  receive  due 
compensation  from  the  State)  such  disposition  of  private  property,  or 
appropriation  thereof  for  public  uses,  as  the  public  good  shall  appear  to 
them  to  require."  The  Council  never  felt  committed  on  the  policy  of 
acting  finally  on  the  matter,  but  voted  merely  for  measures  to  ascertain  the 
amount,  reserving  the  right  to  act  according  to  circumstances  hereafter. 

The  resolution,  introduced  likewise  by  your  Excellency,  for  forcing 
forward  the  manufacture  of  salt,  was  authorized  under  the  power  to  make 
"  regulations  and  arrangements"  for  the  support  of  such  portion  of  the  popu- 
lation as  might  be  called  into  service.  Salt  was  an  article  of  prime 
necessity,  and  there  was  danger  that  it  could  not  be  procured  at  all  when 
wanted,  unless  something  was  done,  as  your  resolution  expressed  it,  "to 
force  forward  "  the  manufacture.  Under  the  same  power,  I  have  supposed 
that  the  Governor  and  Council  were  authorised  to  purchase,  and  distribute 
at  cost,  among  the  families  of  troops  in  service,  cotton  cards,  and  to  sell  at 
cost  such  surplus  salt  as  might  be  found  in  the  commissary  department. 

Your  Excellency  introduced,  on  the  same  day,  various  resolutions,  these 
two  being  a  part  of  the  series.  The  remainder  of  the  series  were  referred, 
and  some  of  them,  in  a  modified  form,  were  afterwards  adopted.  None  of 
them  were  objected  to  as  being  beyond  the  competency  of  the  Governor  and 
Council,  though  they  propose,  I  think,  the  largest  powers  which  we  have 
ever  been  called  on  to  exercise. 

I  insert  a  copy  of  the  resolutions,  although  not  adopted,  as  illustrating 
the  views  entertained  as  to  the  extent  of  our  authority. 

"  Resolved,  That  the  one-half  of  every  beat  company  in  the  State,  to  be 
determined  by  lot  in  each  company,  be  ordered  immediately  to  Camp 
Lightwood  Knot,  near  Columbia,  and  there  to  be  organized  into  companies, 
battalions  and  regiments.     All  officers  to  be  appointed  by  this  Council. 


"  Resolved,  That  one  thousand  tents  be  ordered  for  this  encampment  of  a 
reserved  State  force,  and  that  to  aid  in  carrying  out  this  organization,  the 
Chief  of  the  War  Department  be  authorized,  in  conjunction  with  the 
Adjutant  General,  to  order  into  immediate  service  all  the  extra  «ds 
recently  appointed  in  every  District,  to  reorganize  and  take  a  census  of  the 
militia  of  the  State. 

"  Resolved,  That  the  Chief  of  the  War  Department  be  authorized  to 
appoint  immediately  two  competent  persons  to  take  charge  of  the  two 
powder-mills  in  the  upper  part  of  this  State,  and  to  take  for  the  State  all 
powder  they  may  have  on  hand,  together  with  all  material,  at  proper  valua- 
tion, and  that  any  additional  force  be  -employed  to  put  both  mills  in  full 
operation  for  the  State;  and  that  all  material  suited  for  making  powder  that 
can  be  procured,  be  immediately  obtained,  in  such  manner  as  the  Chief  of 
the  Military  Department  may  direct. 

"  Resolved,  That  two  competent  persons  be  immediately  appointed  to 
control  the  Iron  Works  in  York  and  Spartanburg,  if  necessary,  and  to  use 
all  their  resources,  with  any  additional  labor  required,  to  cast  fifty  cannon, 
twenty  of  which  shall  be  twelve  and  six-pounders,  suited  for  field  service  ; 
ten  twenty-four-pounders,  ten *  thirty-two-pounders,  and  ten  forty-two- 
pounders,  and  to  have  them  mounted  and  ready  for  service  as  soon  as 
possible.  »   , 

"  Resolved,  That  all  gunsmiths  and  artizans  in  brass  and  iron  be  collected, 
and  employed  in  such  foundries  and  workshops  as  may  be  designated,  for 
making  and  repairing  all  small  arms  that  can  be  made ;  and  to  execute  the 
above  resolutions,  the  Chief  of  the  War  Department,  in  consultation  with  the 
Adjutant  General,  is  authorized  to  employ  and  use  such  agents  as  he  may 
think  proper. 

"  Resolved,  That  one-half  of  all  the  cattle  belonging  to  every  person  in 
the  State  shall  be  immediately  taken,  at  a  fair  valuation,  for  the  State,  and 
receipts  for  the  same  be  given,  obligating  the  State  for  the  amount,  to  dr*w 
six  per  cent,  interest  sixty  days  after  date,  and  that  such  as  are  not  fit  or 
needed  now  to  be  killed,  the  owner  of  the  same  shall  keep  and  fatten  up, 
for  proper  compensation,  until  needed. 

"  Resolved,  That  one-half  of  all  the  flour  now  in  the  State,  and  one-half 
of  all  the  wheat,  be  immediately  taken,  on  proper  valuation,  for  the  State, 
and  receipts  for  the  same  given,  as  in  the  above  resolution,  and  that  the 
Chief  of  Justice  and  Police  be  authorized  to  carry  out  these  resolutions,  in 
such  manner  as  he  may  think  best  for  the  State. 

.  Resolved,  That  all  the  troops  now  in  the  State,  in  actual  Confederate 
service,  for  twelve  months,  be  immediately  called  on  to  reenlist  for  the 
war,  but  not  to  be  moved  out  of  the  State  except  by  orders  from  this 
Council — this  condition  to  be  of  force  at  the  end  of  their  present  term  of 


6 

enlistment,  and  that  the  Chief  of  the  Military,  in  conjunction  -with  the 
Adjutant  General,  be  authorized  to  carry  this  out,  in  such  manner  as  he 
may  think  best  for  the  State. 

il  Resolved,  That  our  Senators  and  Representatives  in  Congress  be  re- 
quested to  urge  immediately  the  adoption  of  measures  necessary  to  establish 
a  great  Regterve  Camp  at  or  near  Atlanta,  Georgia,  of  at  least  one  hundred 
thousand  men,  each  State  to  furnish  its  proper  quota,  and  all  officers  to  be 
appointed  by  the  President,  with  the  consent  of  the  Senate." 

.These  resolutions  contained  the  first  proposition  to  bring  a  portion  of  the 
population  of  the  State  into  service  by  compulsion,  and  for  assuming  On  our 
part  the  appointment  of  officers,  both  Field  mid  Company. 

The  right  to  do  this  I  never  doubted,  under  the  power  "  to  make  and 
cause  to  be  executed  all  such  orders,  regulations  and  arrangements  as  they 
(the  Governor  and  Council)  shall  from  time  to  time  find  expedient  for 
bringing  into  service,  organizing  and  supporting  the  whole  or  any  part  of 
the  population  of  the  State,  to  be  employed  in  the  public  service."  This 
grant  of  power,  I  think,  was  intended  to  give  to  the  Council  full  control 
over  the  organization  of  any  forces  to  be  raised.  But  if  there  could  be  a 
doubt  on  this  point,  there  is  another  Ordinance,  passed  by  the  same  Conven- 
tion, styled  "  An  Ordinance  in  relation  to  a  portion  of  the  Militia,"  which 
is  too  explicit  for  controversy.  It  declares,  in  section  first :  "  That  no  part 
of  the  Militia  law  shall  stand  in  the  way  of  the  Governor  and  Council  to 
organize  and  call  into  service  any  portion  of  the  Militia  of  the  State,  as  may 
seem  most  expedient."  From  the  same  source  I  derive  the  authority  of  the 
Governor  and  Council  to  make  all  the  orders,  regulations  and  arrangements 
in  regard  to  the  military,  which  were  afterwards  adopted,  whether  in  con- 
travention or  not  of  Acts  of  the  Legislature. 

Next  in  point  of  time  came  the  regulations  in  regard  to  the  distillation 
and  sale  of  spirits. 

Your  Excellency  must  remember  the  representations  from  the  upper 
country  as  to  the  overwhelming  evil  which  was  to  follow  the  unparalleled 
investments  made,  and  about  to  be  made,  in  the  business  of  distillation. 
The  high  price  of  whisky  had  induced  such  numbers  to  seek  this  new 
road  to  wealth,  that  a  famine,  it  was  thought,  threatened  the  whole  State. 
Money  has  been  called  the  "  sinews  of  war,"  but  with  us  breadstuffs%  are 
preeminently  so.  I  thought  the  evil  came  within  the  scope  of  our  powers. 
By  declaring  martial  law  in  regard  to  this  particular  subject-matter,  it  could 
certainly  have  been  reached.  But  being  unwilling  to  startle  the  community 
by  an  unnecessary  declaration  of  martial  law  in  prohibition  of  distillation  • 
from  grain,  I  recommended  the  exercise  of  the  power,  as  an  incident  to  the 
power  "  to  make  and  cause  to  be  executed  all  such  orders,  regulations,  and 


arrangements,  as  they  shall  from  time  to  time  find  expedient,  for  bringing  into 
service,  organizing,  and  supporting,  the  whole,  or  any  portion  of  the  popu- 
lation of  the  State  to  be  employed  in"  the  public  service,  and  also  for  main- 
taining such  efficient  police  as  shall  by  them  be  thought  necessary."  Your 
Excellency,  with,  I  think,  every  member  of  the  body,  yielded  ready  ac- 
quiescence, and  I  was  instructed  to  draw  the  resolutions.  I  looked  to  the 
end  proposed,  and  considered  that  the  accustomed  agencies  would  best  effect 
the  object,  and  offered  the  resolution  that  it  should  be  declared  "  a  misde- 
meanor" to  distil  grain,  and  the  distillery  should  be  deemed  "a  nuisance," 
subject  to  abatement.  This  "  regulation  "  and  "  arrangement"  was  thought 
the  most  expedient,  and  was  accordingly  adopted,  and  made  an  u  order," 
by,  I  think,  a  unanimous  vote.  Our  right  to  make  *a  regulation  in  pro- 
hibition of  distillation  is  too  clear  for  controversy.  If  there  is  error,  it  can 
only  be  in  the  manner  of  enforcement,  which  is  less  prompt  and  summary 
than  is  usual  in  Executive  orders.  Thus  far,  however,  it  has  worked  well. 
So,  again,  as  to  the  sale  of  spirits  under  circumstances  to  affect  our  troops. 
The  evil  had  become  so  great,  that  there  seemed  to  be  an  universal  out- 
cry— murders,  brawls,  fatal  accidents  among  our  troops,  particularly  while 
passing  on  the  railroads,  had  become  of  frequent  occurrence.  The  scenes 
exhibited  were  shocking  to  decency.  The  disposition  to  interfere  was 
unanimous  with  the  Council,  and  your  Excellency  warmly  approved.  I 
believed  we  had  the  power  in  this,  as  in  the  case  of  distillation,  and  pro- 
posed similar  resolutions  in  regard  to  sales  of  liquor  within  reach  of  our 
troops  on  the  line  of  railroads.  In  aid  of  these  efforts,  railroad  companies 
were  appealed  to,  to  refuse  the  transportation  of  spirits,  and  they  promptly 
responded.  Never,  in  my  experience,  has  the  making  of  regulations  so 
nearly  approached  to  the  attainment  of  the  objects  proposed,  with  the  use 
of  so  little  machinery  in  the  enforcement.  The  cheerful,  prompt,  and 
efficient  cooperation  of  the  Railroad  Directors  merit  our  thanks  and  the  ap- 
probation of  the  community. 

Under  the  power  "  to  make  and  cause  to  be  executed  regulations  for  an 
efficient  police  "  I  ventured  to  propose  some  amendments  to  a  legislative  Act 
which,  by  its  title-  and  provisions,  was  purely  a  police  regulation  for  the 
invaded  districts.  As  to  military  regulations,  I  have  shown  that  we  had 
express  authority  to  "disregard"  legislative  enactments.  The  regulation 
of  the  police  being  in  the  broadest  terms  committed  to  us,  I  deemed  that  we 
had  the  same  power  there.  These  have  been  termed  "  legislative  acts.1' 
Regulations  as  to  the  military  and  police,  have,  for  the  time,  necessarily,  the 
effect  of  laws.  Many  orders  and  regulations  from  the  Treasury  Department, 
or  the  War  Department,  from  the  Adjutant  General's  office,  are  very  like 
legislation,  in  form  and  substance.  "  Orders,  regulations,  and  arrange- 
ments," so  far  as  the  subject-matter  to  which  they  refer  is  concerned,  must 


8 

infriDge  upon,  or  rather  must  occupy,  a  common  ground  with  "  legislation  " 
on  the  same  subject.  If  the  Sovereign  has  delegated  the  right  to  make 
these  regulations,  the  authority  is  rightfully  exercised,  call  them  by  what 
name  you  will.  According  to  the  views  I  have  presented,  it  rests  alone 
with  the  Sovereign  power — a  Convention  of  the  People,  which  metes  out 
the  powers  of  other  constituted  authorities — to  determine  what  shall  be  the 
*  powers  of  the  Executive  Department,  and  what  shall  be  the  powers  of  the 
department  called  the  Legislature.  These  matters,  all  of  which  met  with 
the  sanction  of  your  Excellency,  had,  as  I  conceive,  been  committed  to  the 
Executive  Department,  as  constituted  by  the  Convention. 

The  next  matter,  which  was,  as  you  know,  for  some  time  under  the 
anxious  consideration  of  the  Governor  and  Executive  Council,  was  the  pro- 
hibition of  the  exportation  of  cotton,  except  under  certain  restrictions,  unless 
expressly  sanctioned  by  the  Confederate  authorities.  This  measure,  per- 
haps the  most  doubtful  adopted,  was  approved  by  your  Excellency  and  the 
whole  Council,  and  did  not  originate  with  me.  My  reasons  for  approving 
have  already  been  placed  on  the  record,  and  a  copy  of  the  letter  stating 
these  reasons,  by  order  of  the  Council  was  sent  to  Mr.  Memminger,  Secre- 
tary of  the  Confederate  Treasury,  and  published  in  the  papers.  I  append 
a  copy  of  this  letter  to  this  report.     (See  Appendix,  B.) 

The  establishment  of  a  foundry  for  cannon,  cannon  equipage,  balls  and 
shell,  and  for  the  repair  of  small  arms,  with  a  nucleus  for  a  small-arms  manu- 
factory in  future,  was,  in  express  terms,  within  our  powers.  So  as  to  the 
nitre  plantation,  now  in  satisfactory  progress.  So  in  regard  to  the  impor- 
tation of  arms  and  medicines. 

In  the  matter  of  the  gun-boat,  the  Governor  and  Council  acted  under  the 
direct  authority  of  the  Convention,  by  whom  the  specific  appropriation  was 
made. 

The  surveys  of  the  Santee  and  Pee  Dee,  and  mountain  passes  in  this  State 
and  North  Carolina  and  Tennessee,  though  they  cost  a  small  amount  of 
money,  were,  as  I  conceive,  within  the  general  powers  committed  to  us,  as 
well  as  the  action  since  taken,  as  the  consequence  of  those  surveys. 

Tfthe  two  acts  which  have  excited  most  dissatisfaction  are  the  call  for 
troops  for  the  protection  of  Georgetown  and  the  country  above,  after  the 
abandonment  of  the  Confederate  forces,  and  the  action  of  the  Governor  and 
Council  with  regard  to  a  supply  of  negro  labor  in  and  near  Charleston  for 
building  fortifications 'and  harbor  obstructions.  Yet  neither  of  these  acts, 
surely,  needi  any  defence  on  the  score  of  competency  on  the  part  of  the  Gov- 
ernor and  Council.  The  first  was,  in  effect,  to  bring  into  service  a  portion  of 
the  population  of  the  State,  to  be  employed  in  public  service,  as  we  believed, 
of  the  most  important  character.  Your  Excellency's  proposition  on  this 
subject  was  as  follows : 


9 

April  12,  1862. 

"Resolved,  That  all  the  militia  of  Georgetown,  Marion,  Horry,  and  Wil- 
liamsburg, be  immediately  ordered  out  and  organized  into  companies,  bat- 
talions, and  regiments,  with  the  best  arms  and  equipments  that  can  for  the 
present  be  procured,  and  that  one  thousand  tents  be  ordered  for  them. 

"Resolved,  That  they  elect  their  own  company  officers,  and  that  this  Coun- 
cil appoint  field  officers  for  this  organization. 

"Resolved,  That  they  be  rendezvoused  near  Georgetown,  to  protect  prop- 
erty, and  to  endeavor  to  defend  the  country  to  the  best  of  their  ability,  as 
it  is  intimated  that  all  our  troops  in  Confederate  service  will  be  ordered 
from  that  section  of  the  State,  and  thus  open  Georgetown  to  the  enemy. 

"Resolved,  That  the  Quartermaster  and  Commissary  Generals  be  imme- 
diately instructed  to  provide  proper  transportation  and  supplies  for  said 
troops. 

"Resolved,  That  orders  be  issued  by  the  Chief  of  the  Military  Department 
to  stop  any  further  supplies  being  furnished  to  the  Confederate  troops  from 
the  State  Commissary  Department,  and  also  that  the  same  orders  be  issued 
to  the  State  Quartermaster  General. 

"Resolved,  That  the  Chief  of  the  Military  Department  be  charged  with 
the  execution  of  the  foregoing  resolutions." 

The  second,  to  wit :  the  impressment  of  negroes,  was  a  disposition  and 
appropriation  (temporarily)  of  private  property  for  public  use.  The  last  I 
shall  touch  on  in  another  part  of  my  report. 

It  has  been  objected  that  offices  have  been  created.  What  offices  ?  Col. 
Jones- was  employed  to  audit  some  difficult  accounts,  and  to  act  for  General 
Harllee  in  his  absence  on  public  business,  at  an  expense  of  just  one  hun- 
dred and  eleven  dollars  and  eleven  cents.  Major  Melton  was  made  an 
assistant  to  the  Adjutant  General,  the  Council  paying  only  his  very  mod- 
erate bill  of  expenses  in  Columbia.  Mr.  Arthur  was  made  Secretary  of  our 
body  without  any  compensation  from  the  Treasury.  Lieutenant  Follin  was 
given  a  military  rank,  without  any  addition  to  the  salary  given  him  by  the 
Legislature  as  Clerk  to  the  Adjutant  General.  An  assistant  to  the  Adju- 
tant General  was  given  for  Charleston,  at  his  request,  with  the  rank  and 
pay  of  captain.  A  Superintendent  of  the  cannon  foundry  and  manu- 
factory of  arms  was  absolutely  necessary  for  such  an  establishment,  and  so 
as  to  the  saltpetre  plantation.  Something  was  paid  to  some  of  the  sur- 
veyors of  the  Santee,  the  Pee  Dee,  and  the  mountains,  and  temporary  com- 
missions given,  though  in  two  of  these  instances  the  valuable  services  of  Mr. 
Niernsee  were  rendered  gratuitously.  Mr.  James  Tupper  was  made  Central 
Secretary  of  the  Commissions  for  the  removal  of  negroes  from  the  seaboard, 
and  women  and  children  from  Charleston,  at  the  request  of  a  majority  of 
2 


10 

the  Commissions  j  a  very  laborious  office,  in  which  he  generously  served 
without  pay.  The  same  gentleman  has  been  recently  appointed  to  examine 
and  audit  the  accounts  of  this  State  with  the  Confederate  Government, 
going  back  to  the  20th  of  December,  1860,  and  he  serves  for  the  mere 
amount  of  expense  incurred  in  the  performance  of  duty.  The  Doctors  Le- 
Conte  have  rendered  valuable  service  in  examining  salt  springs  and  lead 
mines,  but  they,  too,  have  worked  gratuitously.  The  Chief  of  the  Military 
has  a  Clerk.  I  have  a  Clerk,  at  the  rate  of  five  hundred  dollars  per  annum/ 
and  for  a  time  had  two  Policemen  in  permanent  employment,  at  fifty  dollars 
per  month.  This  comprises,  I  think,  everything,  and  the  Ordinance  ex- 
pressly gives  the  Governor  and  Council  the  right  "  to  constitute  and  appoint 
such  agents  as  shall  be  necessary  for  the  more  efficient  execution  of 
the  powers  confided  to  them." 

I  am  not  aware  that  any  of  these  appointments  have  been  objected  to  by 
your  Excellency. 

I  shall  proceed,  in  part  three,  to  report  upon  the  action  taken  on  those 
matters  which  have  come  more  «particularly  under  my  individual  control. 

Respectfully,  your  ob't  servant, 

I.  W.  HAYNE. 


APPENDIX 


AN  ORDINANCE 

For  Strengthening  the  Executive  Department  during  the  exi- 
gencies OF  THE  PRESENT  WAR. 

We,  the  People  of  the  State  of  South  Carolina,  in  Convention  assembled, 
do  declare  and  ordain,  and  it  is  hereby  declared  and  ordained,  as  follows  : 

Sec.  1.  Until  the  present  war  between  the  Confederate  States  of  America 
and  the  United  States  shall  have  been  terminated,  and  the  forces  raised  in 
this  State  for  the  prosecution  thereof  shall  have  been  disbanded,  or  until  it 
shall  be  otherwise  ordained  by  the  People  in  Convention,  the  Governor  shall 
be  assisted,  as  is  hereinafter  directed,  in  the  discharge  of  the  duties  imposed, 
and  in  the  exercise  of  the  powers  conferred  upon  him  under  the  Constitution 
and  laws  of  this  State,  or  the  Ordinances  of  this  Convention,  by  a  Council, 
to  be  called  the  Executive  Council,  which  shall  consist  of  the  Lieutenant 
Governor  and  three  other  citizens  of  the  State,  to  be  chosen  by  this  Con- 
vention by  a  ballot,  a  majority  of  the  votes  cast  at  such  election  being 
necessary  to  a  choice. 

Sec.  2.  The  Governor  and  the  Executive  Council,  acting  together,  shall 
have  power  to  declare  martial  law  to  such  extent,  in  such  places,  and  at 
such  times,  as  shall  be  required  by  the  exigency  of  public  affairs;  to  arrest 
and  detain  all  disloyal  or  disaffected  persons,  whose  being  at  large  they  shall 
deem  inconsistent  with  the  public  safety;  to  order  and  enforce  (subject  to 
the  owner's  right  to  receive  due  compensation  from  the  State)  such  disposi- 
tion of  private  property  or  appropriation  thereof  for  public  uses  as  the  public 
good  shall  appear  to  them  to  require ;  to  make,  and  cause  to  be  executed, 
all  such  orders,  regulations,  and  arrangements,  as  they  shall,  from  time  to 
time,  find  expedient  for  bringing  into  service,  organizing  and  supporting, 
the  whole,  or  any  part,  of  the  population  of  the  State,  to  be  employed  in 
the  public  service,  and,  also,  for  maintaining  such  efficient  police  as  shall, 
by  them,  be  thought  necessary ;  to  make,  procure  or  employ  arms,  muni- 


12 

tions  of  war,  and  whatever  else  may  be  required  for  the  defence  of  the 
State  j  to  constitute  and  appoint  such  agents  as  shall  be  necessary  for  the 
more  efficient  execution  of  the  powers  hereby  confided  to  them ;  for  these 
purposes  to  draw  money  from  the  public  Treasury,  the  Treasurers  being 
bound  to  pay  their  draft  from  any  money  in  the  Treasury ;  to  make  all  such 
nominations  and  appointments  to  military  offices  as  the  Governor  has  here- 
tofore been  authorized  to  make  j  to  fill  all  offices  and  appointments  where 
there  is  any  vacancy  for  default  of  action  by  the  Legislature  or  other  ap- 
pointing power,  or  for  default  of  any  provision  by  law  of  the  mode  of 
appointment,  and  to  fill,  until  the  next  meeting  of  the  People  in  Conven- 
tion, any  vacancy  which  may  occur  in  the  Council  by  reason  of  the  death, 
resignation  or  removal  from  the  State,  of  any  one  of  the  three  members 
thereof  chosen  by  the  Convention. 

Sec.  8.  In  the  discharge  of  all  his  duties  and  the  exercise  of  all  his 
powers,  not  hereinbefore  enumerated,  the  Governor  is  authorized  to  consult 
the  Council,  and  to  require,  if  need  be,  its  advice  in  writing. 

Sec.  4.  The  Governor  and  Executive  Council  may,  at  their  discretion, 
arrange  some  or  all  of  the  business  to  be  done  by  them,  into  different  de- 
partments, assign  each  department  to  one  or  more  members  of  the  Council, 
and  make  rules  for  the  management  of  a  department  or  other  business. 
Acts  done  by  either  of  the  departments,  in  conformity  to  rules  or  orders 
established  by  the  Governor  and  Council,  shall  be  valid,  but  shall  be  always 
subject  to  the  control  of  the  Governor  and  Council. 

Sec.  5.  The  Governor  shall  have  access  to  the  books  and  papers  of  every 
department,  and  the  opportunity  of  being,  at  all  times,  fully  informed  of  the 
condition  of  its  business ;  reports  to  him  shall  be  made  by  the  heads  of  de- 
partments, when  he  may  require  them ;  and  he  shall  communicate  to  this 
Convention  and  to  the  General  Assembly,  at  every  meeting  of  either  body, 
full  information  concerning  the  transactions  of  the  Council  and  the  cow 
dition  of  every  department. 

Sec.  6.  If  there  should  be  a  vacancy  in  the  office  of  Governor,  the  Lieu- 
tenant Governor,  having  succeeded  to  that  office,  shall  discharge  the  duties 
herein  required  of  the  Governor;  and  the  President  of  the  Senate,  having 
succeeded  to  the  office  of  Lieutenant  Governor,  shall  become  a  member  of 
the  Executive  Council. 

Sec.  7.  The  Governor  (or  if  he  be  necessarily  absent,  the  Lieutenant 
Governor,)  and  any  two  of  the  members  of  Council  elected  by  this  Conven- 
tion, shall  be  sufficient  to  constitute  a  quorum ;  and  the  concurrence  of  a 
majority  of  all  present,  there  being  a  quorum,  shall  be  required  for  the 
validity  of  any  action  in  which  the  Governor  and  Council  are  required  to 
act  conjointly.     If,  by  vacancies,  the  Council  should  be  reduced  to  two  or 


0 

13 

only  one,  the  Governor,  for  the  time  being,  with  those  two  or  that  one,  shall 
be  sufficient  to  fill  the  vacancies  in  the  places  of  members  chosen  by  this 
Convention,  until  the  next  meeting  of  the  Convention. 

Sec.  8.  The  Governor  and  Council  shall  keep  a  record  of  their  proceed- 
ings, and  for  this  purpose  the  Special  Private  Secretary  of  the  Governor 
shall  be  their  Secretary  without  additional  pay.  This  record  shall  especially 
show  the  reasons  for  every  arrest  made  by  their  authority.  Any  one  of 
them  shall  have  the  privilege  of  filing  and  thus  preserving  as  part  of  the 
record,  his  dissent  from  their  action  in  any  matter.  On  the  first  day  of 
each  meeting  of  the  People  in  Convention,  the  record  of  all  the  proceedings 
of  the  Governor  and  Council  had  prior  thereto,  shall  be  laid  before  such 
Convention,  and  the  said  proceedings  shall  be  subject  to  review,  and  to 
repeal,  or  such  modification  by  the  Convention  as  to  it  shall  seem  proper. 

Sec.  9.  The  first  meeting  of  the  Governor  and  the  Executive  Council 
shall  be  had  within  seven  days  after  the  adjournment  of  the  present  sitting 
of  this  Convention,  at  a  time  and  place  to  be  fixed  by  the  Governor,  of 
which  he  shall  give  notice  to  each  member.  Afterwards  their  meetings 
shall  be  regulated  by  their  own  orders  and  adjournments. 

Sec.  10.  Each  member  of  the  Council  shall  receive  an  annual  salary  of 
two  thousand  dollars,  payable  quarterly  out  of  the  Treasury  upon  the  draft 
or  order  of  the  Governor. 

Sec.  11.  The  President  of  the  Convention,  if  in  his  opinion  the  public 
exigencies  shall  require,  or  if  he  shall  be  requested  in  writing  so  to  do  by 
any  twenty  members  of  the  Convention,  shall  by  notice  under  his  hand  duly 
published,  assemble  this  Convention,  without  delay,  at  a  time  and  place  to  be 
by  him  fixed,  and  he  shall  appoint  a  Committee  of  five  members  of  the  Con- 
vention, a  majority  of  whom,  or  the  survivors  or  survivor  of  such  majority, 
shall,  in  case  of  the  death,  resignation,  or  disqualification  of  the  President, 
have  the  like  authority  and  be  under  the  like  obligation  to  assemble  the 
Convention  and  appoint  a  time  and  place  for  its  meeting ;  but  neither  the 
President  of  the  Convention  nor  any  member  of  the  said  Committee  shall 
be  a  member  of  the  Executive  Council. 

[Certified  copy.]  , 

B.  F.  ARTHUR,  Clerk  of  Convention, 


14 


B. 


EXECUTIVE  COUNCIL  CHAMBER, ) 
Columbia,  S.  0.,  April  4,  1862.      j 

The  following  preamble  and  resolutions,  adopted  by  tbe  Governor  and 
Council,  have  been  ordered  to  be  published  : 

2f£  ^  5JC  j}i  ^  ?}'  ?jC  ^ 

Whereas,  information  has  reached  the  Governor  and  Council  that  sundry- 
small  vessels  have  from  time  to  time  carried  from  the  port  of  Charleston 
cargoes  of  cotton,  which  the  Governor  and  Council  have  reason  to  believe 
have  found  their  way  to  the  enemy,  and  which  certainly  have  not  brought 
back  return  cargoes  of  arms,  munitions,  or  army  supplies :  Therefore, 

Resolved,  That  during  the  continuance  of  the  present  blockade  the  ex- 
portation of  cotton  from  any  port  in  South  Carolina  is  hereby  prohibited, 
unless  by  the  express  permission  of  the  Confederate  or  State  authorities. 

Resolved,  That  an  agent,  resident  in  the  city  of  Charleston,  be  appointed, 
who  shall  be  authorized  to  grant  permission  for  the  exportation  of  cotton  on 
the  terms  hereinafter  prescribed,  to  wit :  Affidavit  shall  be  made  that  no 
part  of  the  cotton  exported  shall,  with  the  consent  or  connivance  of  the 
exporter,  find  its  way  into  the  possession  of '  the  enemy;  and  bond,  with 
good  surety,  shall  be  given  that  the  full  amount  of  the  net  proceeds  of  the 
sale  of  said  cotton  shall  be  brought  back  into  the  Confederate  States  in 
arms,  munitions  of  war,  or  army  supplies,  unless  prevented  by  successful 
interposition  of  the  enemy. 

[Extract  from  the  Minutes  of  April  4.] 

By  order  of  the  Governor  and*  Council. 

F.  J.  MOSES,  Jr.,  Secretary. 


Columbia,  April  11,  1862. 

The  resolutions  of  the  fourth  of  April,  after  lying  over  for  two  days,  and 
the  subject-matter  undergoing  discussion  for  several  days  previously,  were 
unanimously  adopted,  the  policy  being  approved  by  the  Governor  and  every 
separate  member  of  the  Executive  Council.  We  believed  that  we  were  but 
attempting,  as  far  as  it  was  in  the  power  of  the  State  authorities  to  do  so,  to 
carry  out  a  settled  policy,  sanctioned  by  nine-tenths  of  the  people  of  the 
Confederate  States.  We  have  been  of  opinion  that  the  exportation  of 
cotton,  at  all,  was  conceded  to  be  an  evil,  so  long  as  the  blockade  was 


15 

tolerated  by  neutral  powers,  but  that  our  necessities  were  such  as  to  make 
the  importation  of  "arms,  munitions,  and  army  supplies,"  and  perhaps  some 
other  articles,  an  object  so  important  that  such  importation  more  than 
counterbalanced  the  evil  of  a  limited  exportation  of  cotton.  We  desired, 
without  in  any  degree  interfering  with  the  Confederate  Government,  to 
make  the  exportation  and  importation  correlative.  To  effect  this,  we 
prohibit  exportation,  without  express  permission  of  the  authorities  of  either 
one  or  the  other  of  the  Governments.  The  failure  to  prohibit  by  the 
Confederate  Government  is  not  an  express  permission.  The  custom-house 
clearance  we  have  not  considered  as  an  express  permission,  unless  the 
Goverment  should  declare  that  it  is  so  intended.  If  it  should  so  declare,  we 
are  foiled  in  our  efforts,  that  is  all.  But  if  it  does  not  so  declare,  we 
propose  to  prevent  the  exportation,  unless  by  a  special  permission,  accord- 
ing to  the  circumstances  of  each  case,  from  the  one- authority  or  the  other, 
or  by  a  permission  through  an  agent  on  the  general  terms  specified  in  the 
second  resolution. ' 

Now,  this  can  surely  bring  about  no  conflict  between  the  Governments. 
As  to  the  citizens  claiming  rights  as  secured  by  existing  laws — that,  I  admit, 
is  a  different  question.  That  is  a  question  we  supposed  would  be  made  ; 
but  unless  the  Confederate  Government  interferes  in  their  behalf,  we  do 
not  doubt  either  our  power,  or  the  propriety  of  its  exercise. 

Some  months  ago,  you  must  remember,  that  Mr.  Trenholm  proposed  to 
ship  cotton,  and  had  a  vessel  partly  loaded  for  the  purpose.  Public  opinion 
was,  at  that  time,  so  general  and  decided  in  opposition  to  such  exportation, 
that  Mr.  Trenholm,  when  appealed  to,  yielded  to  its  force.  He  desisted  for 
the  time,  and  took  the  cotton  from  his  vessel.  1  shall  not  now  enter  into 
the  argument  to  show  the  grounds  upon  which  this  overwhelming  popular 
sentiment  rested.  I  expressed  my  views  pretty  fully  through  the  papers  at 
that  time.  Suflice  it  thafe,  in  the  opinion  of  the  Council,  this  sentiment  is 
well  founded.  We  believe  the  exportation  of  cotton,  in  any  other  than 
certain  exceptional  cases,  to  be  injurious  to  the  public  interests.  We  are 
charged  with  high  powers  for  protecting  the  public  safety,  and  promoting 
the  public  welfare  in  the  exigencies  growing  out  of  the  present  war. 
Among  these  powers  are  these  :  "to  declare  martial  law;  to  arrest  disloyal 
or  disaffected  persons,  whose  liberty  we  deem  inconsistent  with  the  public 
safety;  to  make  such  disposition  of  private  property,  or  appropriation 
thereof,  for  public  uses,  as  we  consider  that  the  public  good  requires."  We 
are  further  charged  with  "procuring  arms,  munitions  of  war,  and  whatever 
else  may  be  required  for  the  defence  of  the  State."  Now,  cotton  about  to 
be  exported  is  "  private  property,"  about,  as  we  believe,  to  be  appropriated 
to  mischievous  uses;  have  we  not  the  power  to  "dispose  of"  it  in  another 


16 


way?  If,  in  our  opinion,  it  is  needed  "  to  procure  arms,  munitions,"  and 
other  things  "  required  for  the  defence  of  the  State,"  have  we  not  the 
power  so  to  appropriate  it?  If  we  have  the  power  to  seize,  dispose  of  and 
appropriate  the  cotton  for  such  purposes,  can  it  be  usurpation  to  declare 
that  the  owner  shall  so  appropriate  it,  if  he  exports  it  at  all?  The  me"e 
paper  declaration  is  brutum  fulmen  unless  enforced.  If  called  upon  to 
enforce  the  declaration,  then  begins  the  exercise  of  real  power.  Of  course 
this  has  been  considered,  and  when  we  seize  the  cotton  and  vessel,  and 
appropriate  them  ourselves  to  procure  arms,  by  sending  them  ourselves  to 
Europe,  we  will  do  no  more  than  exercise  a  power  clearly  delegated. 

This  argument  applies  to  the  powers  of  the  Governor  and  Council,  under 
the  Ordinance.  As  to  the  power  of  the  State,  does  not  the  right  of  eminent 
domain  give  to  a  State  the  absolute  right  to  appropriate  all  private  property 
to  public  uses,  subject  only  to  the  claim  for  compensation;  more  especially 
in  times  of  war  and  public  peril  ? 

The  simple  resolution  is  no  more  than  a  Governor's  proclamation.  It 
may  be  bad  taste  to  order  what  cannot  be  enforced,  but  as  I  have  before 
said,  it  is  only  when  enforcement  is  attempted  that  any  substantial  usurpa- 
tion can  exist.  The  right  to  enforce,  in  the  way  we  propose,  is,  in  my 
judgment,  clearly  in  the  State,  and  as  clearly  delegated  by  the  State  to  the 
Governor  and  Council.  I  incline  to  think  that  any  interference  with  the 
exercise  of  this  right,  by  the  Confederate  Government,  would  be  usurpa- 
tion on  their  part.  But  we  do  not  propose  to  raise  any  question  with  tha* 
Government.  When  that  Government  orders,  or  asks,  or  even  expressly 
permits  cotton  to  go  out,  we  not  only  do  not  attempt  to  enforce  prohibition, 
but  we  declare,  beforehand,  our  assent.  » 

I  have  written  very  hastily,  but  the  subject  I  have  considered. 

If  Mr.  W.  F.  Colcock  be  in  Charleston,  please  show  him  this  letter,  and 
ask  him  if  he  will  accept  the  agency.  He  was  appointed  Agent  simulta- 
neously with  the  adoption  of  the  resolution,  and  a  copy  of  the  resolution 
sent  to  him. 

I  am  yours,  truly. 

I.  W.  HAYNE. 

To  C.  It.  Miles,  Esq.,  District  Attorney  C  S.- 


Hollinger  Corp. 
pH8.5 


